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OFFICIAL SHORT CITATION NAME: When referring to 2009 OEA X, cite this
case as

This matter having come b=
efore
the Court on the Indiana Department of Environmental Management’s Mot=
ion
for Summary Judgment, which pleading is a part of the Court’s record;=
and
the Court, being duly advised and having read the pleadings, record, motion,
brief and evidence now enters judgment and makes the following findings of
fact, conclusions of law and final order:

Findings of Fact

=
o:p>

1.&n=
bsp; &nbsp=
;
The Indiana Department of Environmental Management =
(the
IDEM) issued Permit Approval No. 19115 (the Approval) to the Gary Sanitary
District (the Permittee) on May 22, 2008 for construction of a sanitary sew=
er
located northeast of West 53rd and Adams Street intersection in

Gary, I=
ndiana.

2.&n=
bsp; &nbsp=
;
On May 27, 2008, Eli Gusan (the Petitioner) filed h=
is
Petition for Review stating that his objections were:

·Flow rate of 2 ft/sec. can’t be obtain=
ed
on 7 homes.

·Flow rate and back up problems also flooding=
at reference
point (482) block to block

·Standard 2 ft./sec. flow rate – health
hazard

[2009 OEA 9=
0, page 92
begins]

3.&n=
bsp; &nbsp=
;
Furth=
er, in
the same Petition, the Petitioner stated that the issues were:

·Sanitary sewer to run down (482) I own all of
the right side.

·3 homes for 241 ft. fail to produce a flow at
all – on lot 002 going up.

7.&n=
bsp; &nbsp=
;
On July 3, 2009, the Petitioner informed the Court =
that
he had not received the Motion for Summary Judgment.On July 8, 2009, the Court sent the
Petitioner a copy of the Motion for Summary Judgment and granted an extensi=
on
of time in which to file a Response.

8.&n=
bsp; &nbsp=
;
The Petitioner timely filed his Response to the Mot=
ion
for Summary Judgment on July 22, 2009.&nbs=
p;

[2009 OEA 9=
0, page 93
begins]

Conclusions of Law

=

1. =
The Indiana Department of Environmental Management
(“IDEM”) is authorized to implement and enforce specified Indiana environm=
ental
laws, and rules promulgated relevant to those laws, per I.C. § 13-13, =
et
seq.The Office of
Environmental Adjudication (“OEA”) has jurisdiction over the
decisions of the Commissioner of the IDEM and the parties to the controversy
pursuant to I.C. &se=
ct; 4-21.5-7-3.

<=
span
style=3D'mso-list:Ignore'>2.&n=
bsp; &nbsp=
;
Findings of Fact that may be construed as Conclusio=
ns
of Law and Conclusions of Law that may be construed as Findings of Fact are=
so
deemed.

3. =
This Court must apply a de novo standard of
review to this proceeding when determining the facts at issue.Indiana<=
/i>
Dept. of Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).Findings of fact must be based
exclusively on the evidence presented to the ELJ, and deference to the
agency’s initial factual determination is not allowed.Id.; I.C. § 4-21.5-3-27(d).“De novo review”
means that:

=

all issues =
are to
be determined anew, based solely upon the evidence adduced at that hearing =
and
independent of any previous findings.

4. =
The OEA may enter judgment for a party if it finds =
that
“the pleadings, depositions, answers to interrogatories, and admissio=
ns
on file, together with the affidavits and testimony, if any, show that a
genuine issue as to any material fact does not exist and that the moving pa=
rty
is entitled to judgment as a matter of law . . . Summary judgment may not be
granted as a matter of course because the opposing party fails to offer
opposing affidavits or evidence, but the administrative law judge shall mak=
e a
determination from the affidavits and testimony offered upon the matters pl=
aced
in issue by the pleadings or the evidence.”I.C. § 4-21.5-3-23(b).

7. =
When the moving party sets out a prima facie case in
support of the summary judgment, the burden shifts to the non-movant to
establish a factual issue.=
8220;A
factual issue is said to be "genuine" if a trier of fact is requi=
red
to resolve the opposing parties differing versions of the underlying
facts.”York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. Ct. App. 1992) =
at
864.“A genuine =
issue
of material fact exists where facts concerning an issue that would dispose =
of
the litigation are in dispute or where the undisputed facts are capable of
supporting conflicting inferences on such an issue.”Laudig v.

Marion County
Bd.

of Voters
Registration, 585 N.E.=
2d 700
(Ind. Ct. App. 1992) at 703-704.Further, the Indiana Tax Court in Allied
Collection Service Inc. v. Ind. Dept. of State Revenue (Cause No.
49T10-0608-TA-76, December 22, 2008) stated, “If there is any
doubt when ruling on a motion (or motions) for summary judgment as to what
conclusion the Court could reach, the Court will conclude that summary judg=
ment
is improper, given that it is neither a substitute for trial nor a means for
resolving factual disputes or conflicting inferences following from undispu=
ted
facts. See Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 9=
09 (Ind. 2001) (cita=
tions
omitted).”

9. =
Several of the Petitioner’s contentions, even=
if
true, are not grounds for the revocation/modification of the Permit.[1]The applicable regulations for the
construction of sanitary sewers found at 327 IAC 3 set out the limits for
IDEM’s review of a permit application.IDEM does not have the authority to
require anything beyond that specified in these regulations.Therefore, the Petitioner’s
complaints about property ownership, bedding and toilet paper are irrelevan=
t to
this matter.Summary judgment=
is
proper in regards to the Petitioner’s allegations on these subjects.<=
/p>

=

10. =
In addition, to the extent that the Petitioner̵=
7;s
complaints concern the legal or property rights of persons other than himse=
lf,
the Petitioner fails to state a claim upon which this Court can grant him
relief.

[2009 OEA 9=
0, page 95
begins]

11. =
The requirements for sanitary sewers can be found in
327 IAC 3.The Permit specifi=
es
that the Permittee is authorized to install approximately 642 feet of 8-inch
diameter (PVA, SDR 32, ASTM D3034) sanitary sewer to provide service for 13
existing and 2 future single-family homes in the reference project with an
expected flow of 4,650 gpd (gallons per day).327 IAC 3-6-8(g)
specifies that gravity sewers shall not be less than 8 inches in diameter.<=
span
style=3D'mso-spacerun:yes'> The Petitioner does not specify ho=
w the
Permit fails to meet any of the requirements in 327 IAC 3.

12. =
The materials provided by the Petitioner are not
sufficient to create a question of fact.&n=
bsp;
The Petitioner provides no factual support for his contentions regar=
ding
the number of service connections or flow rates.The materials that were provided a=
re not
authenticated; the written statements from the Petitioner are not sworn und=
er
oath; the evidence is neither reliable nor admissible.Even if the material is considered=
, the
Petitioner fails to explain how the materials he has presented support his
contention that the Permit was improperly issued.The Petitioner cites to no statuto=
ry or
regulatory support for his allegations.&nb=
sp;

=

13. =
The Petitioner provides no factual basis or cogent
legal arguments for his contentions that the Permit is deficient.In light of this, the IDEM has pre=
sented
sufficient evidence[2] to
sustain summary judgment.

Final Order

<=
/span>

AND THE COURT, bei=
ng duly
advised, hereby ORDERS, ADJUDGES AND DECREES that the IDEM’s
motion for summary judgment is GRA=
NTED.The Petition for Review is DISMISSED.All further proceedings are VACATED.

You are hereby further no=
tified
that pursuant to provisions of I.C=
.
§ 4-21.5-7.5, the Office of Environmental Adjudication serves as the
Ultimate Authority in the administrative review of decisions of the
Commissioner of the Indiana Department of Environmental Management.This is a Final Order subject to
Judicial Review consistent with applicable provisions of I.C. § 4-21.5.Pursuant to I.C. § 4-21.5-5-5, a Petition for
Judicial Review of this Final Order is timely only if it is filed with a ci=
vil
court of competent jurisdiction within thirty (30) days after the date this=
notice
is served.

[1]
This is assuming that this is the action that the Petitioner is
requesting.The Petitioner fa=
ils to
state what relief he is seeking in any of his pleadings.One letter sent to the
Permittee/Respondent asks when city water will be provided to the
Petitioner.It is clearly bey=
ond
OEA’s authority to grant this relief.

[2]
The affidavit from Matthew Florczyk contains legal conclusions in addition =
to
facts.These were not conside=
red in
the review of the motion for summary judgment.